Brief Description of Estate Planning Documents
1. Will - a Will describes how you want your property distributed in the event of your death. It appoints an executor who is the person that handles the affairs of the estate, such as paying taxes and other expenses and distributing the assets of the estate.
2. Trust - a Trust is an instrument that transfers property from one person ("Grantor") to a person or company ("Trustee") for the benefit of another person ("Beneficiary"). There are several types of trusts:
- A Trust can be made in a will for the benefit of a minor child. In this situation, upon your death, the trustee collects the property designated in your will for the child and distributes the funds according to the terms of the trust. A common example is to provide payments for the child's healthcare, education, maintenance, and support until the child reaches a certain age.
- A "Living Trust" is a trust made during your lifetime for your benefit. It can either be revocable (you can change it or terminate it at any time while you are alive, but it cannot be changed after your die) or irrevocable (it cannot be terminated after you fund it).
- A "Life Insurance Trust" can be used to own a life insurance policy while excluding it from the proceeds of your estate for tax purposes.
- A "Crummey Trust" makes it possible to make gifts to a trust while excluding some or the entire gift from your estate thus reducing potential tax consequences.
- A "Spendthrift Trust" allows a person to create a trust for their loved one and protect the trust from being attacked by potential overzealous creditors of the Grantor or Beneficiary.
- A "Special Needs Trust" allows the beneficiary of the trust to receive funds from the trust without losing government benefits (ex. Medicaid). This trust requires careful planning in order to maintain the government benefits.
There are two types of Special Needs Trusts- A "Self-Settled Special Needs Trust"is created using the beneficiary's own assets, including funds from a lawsuit settlement or gift.
- A "Third Party Special Needs Trust"is formed by a third party, called the "Grantor." The Grantor can be parent, grandparent, or other third-party.
- A "Qualified Income Trust" (aka a "Miller Trust") can be used to qualify a Medicaid applicant with income in excess of the eligibility limit for long-term care assistance from Medicaid.
3. A "Durable Power of Attorney" allows you to designate an agent to manage your financial affairs and to contract for you. You can restrict the powers of you're agent to specific items of time periods (such as signing a real estate closing contract while you are unavailable). The power of attorney may be revoked at any time and terminates upon your death. The durable power of attorney is extremely useful because it allows someone to manage your financial affairs when you are unable to do it yourself.
4. A "Medical Power of Attorney" allows you to designate a person to make medical decisions on your behalf if you are unable to communicate your wishes.
5. A "Health Care Directive to Physician" also known as a "Living Will" notifies your health care provider in advance whether you would like artificial life support, if any, if you are ever diagnosed with a terminal or irreversible condition.
6. A "HIPAA Authorization" is a document that is now required by many hospitals and doctors due to recent privacy laws. It allows your loved ones to communicate with your doctor, nurse, or hospital regarding your medical condition.